Opinion
Civil Action No. CV-01-0069 (DGT)
July 3, 2003
MEMORANDUM AND ORDER
Plaintiff pro se Anita Allen commenced this action against defendant Delta Airlines, Inc. ("Delta") to recover for injuries sustained while she boarded a Delta flight from New York to Florida. Allen seeks compensation for medical expenses and pain and suffering that resulted from Delta's alleged negligence. In response, Delta has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, stating that Delta breached no duty of care to Allen and requesting dismissal as a matter of law.
Background
On February 1, 1999, plaintiff boarded Delta Flight 407 from La Guardia Airport to Fort Lauderdale, Florida. (Aff. of Louis R. Martinez in Supp. of Def. Delta Airline's Mot. for Summ. J. ("Martinez Aff."), Ex. C at 34, line 15). Plaintiff was a coach passenger and was ticketed for seat 32D, an aisle seat. (Id., Ex. C at 35, line 14; id., Ex. D). Due to various disabilities, she boarded the aircraft immediately after the first class passengers, approximately twenty minutes before takeoff. (Id., Ex. C at 34, lines 15-23). According to her deposition, plaintiff carried with her a small, canvas cosmetic bag, which she stored in the overhead compartment located directly above her seat. (Id., Ex. C at 33, line 18). According to plaintiff, the bag measured 4-5 inches, by 10-12 inches, by 15-16 inches, and was "as heavy as a brick." (Id., Ex. A at 1). Additionally, plaintiff testified that the bag was a "regular cosmetic bag that a woman would carry." (Id., Ex. C at 33, line 21). At the time plaintiff stored her bag in the compartment, there were no other bags inside. (Id., Ex. C at 36, line 10).
During the boarding process, an unknown passenger placed a similar canvas cosmetic bag in the overhead compartment located above plaintiff's seat and closed the compartment. (Id., Ex. C at 45, line 16). No flight attendants stowed or assisted in the stowing of the bags in this compartment or any other overhead compartment on the aircraft. (Id., Ex. C at 44, line 24). While boarding continued, but before the aircraft had begun to taxi, another unknown passenger opened the overhead compartment above plaintiff, causing a canvas cosmetic bag to fall and strike plaintiff on the head and fall onto her lap. (Id., Ex. A at 1; id., Ex. C at 40, lines 15-17). Plaintiff testified that at first she thought it was her bag that had struck her, but that she later realized it was actually a different black cosmetic bag "almost identical" to hers. (Id., Ex. C at 43, lines 6-13). In her opposition papers, plaintiff further stated that the bag that struck her was "15-20 pounds," that it "felt as heavy as the one she carried on board," and that it "struck her like a brick." (Pl.'s Opp'n at 2, par. 3).
Plaintiff additionally testified that only a very short period of time transpired between the time she heard the last person close the compartment and the time the incident occurred. (Id., Ex. C at 47, lines 18-20).
"Pl.'s Opp'n" refers to the letter from plaintiff to Judge Trager of Nov. 5, 2002, submitted in opposition to defendant's motion for summary judgment.
At the time of the incident, the aircraft was still at the gate, and the flight attendants had not yet closed the overhead compartments in preparation for takeoff. (Id., Ex. C at 38, line 20; p. 44, line 24). According to plaintiff, immediately after the bag fell out and struck her, an elderly woman put her hands on plaintiff's shoulder and said, "I'm so sorry, I barely touched it but the compartment just flew open." (Id., Ex. C at 40, lines 19-23). Following the incident, plaintiff did not request any medical assistance and decided to remain on the flight to Florida. (Id., Ex. C at 50, lines 7-9).
Plaintiff claims that the bag that fell and struck her should not have been stored in the overhead compartment but rather beneath the passenger's seat. (Id., Ex. A at 1). In addition, plaintiff claims that the flight attendants should have assisted and supervised the stowing of baggage in the overhead compartments. (Id., Ex. A at 2). Plaintiff contends that Delta's negligence resulted in injuries that required a total of three surgeries. (Id., Ex. A at 1). She seeks reimbursement for medical expenses, which exceed $75,000, as well as compensation for pain and suffering. (Id., Ex. A at 1).
According to plaintiff, the accident aggravated her current medical conditions. (Martinez Aff., Ex. A at 2). Plaintiff, a 70 year old woman, has an extensive medical history and was previously given a total disability rating of 65% (35% lower back, 10% left lower extremity, 20% cervical spine) by Doctor Ned. M. Shutkin in 1987. (Id., Ex. A at 6). She claims that she is still under treatment for the accident on the plane and is awaiting a current disability rating from her doctor (Id., Ex. A at 2).
In response, Delta has moved for summary judgment, claiming that there are no material facts in dispute and that it is entitled to judgment as a matter of law. (Def. Delta's Rule 56.1 Statement of Undisputed Material Facts in Supp. of Mot. for Summ. J. at 1, ¶ 1).
Discussion (1)
When proceeding pro se, a plaintiff's submissions are entitled to a less stringent standard of review than formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 176 (1980) (per curiam) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595 (1972)); see also Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d Cir. 1993). District courts should "read the pleadings of a pro se plaintiff liberally and interpret them to raise the strongest arguments they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (citingBurgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). However, courts must also be aware that pro se status "does not exempt a party from compliance with relevant rules of procedural and substantive law." Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983).
A motion for summary judgment should be granted only where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505 (1986). When ruling on a motion for summary judgment, all facts, inferences, and ambiguities must be viewed in a light most favorable to the nonmovant.See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348 (1986). However, the nonmoving party may not rest upon mere allegations or denials of her pleading, but must set forth specific facts showing that there is a genuine issue for trial and that a jury might return a verdict in his favor. See Anderson, 477 U.S. at 251, 106 S.Ct. at 2514. The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. See id. at 247.
(2)
New York law imposes a duty on Delta, as a common carrier and as an airplane owner, to take reasonable precautions to protect patrons from dangers which are foreseeable from the arrangement or use of its property. See Aponte v. Trans World Airlines, No. 94 Civ. 6337, 1996 U.S. Dist. LEXIS 13567, at *3 (S.D.N.Y. Sept. 12, 1996) (citing Pulka v. Edelman, 40 N.Y.2d 781, 358 N.E.2d 1019, 390 N.Y.S.2d 393 (1976)). Additionally, an airlines's duty of care to its passengers requires it to "observe that carry-on luggage is being stowed in a reasonable manner, to provide assistance as requested, and to make a visual check to assure that compartment doors are closed for takeoff." Ginter v. Trans World Airlines, Inc., 148 A.D.2d 787, 788, 538 N.Y.S.2d 638, 639 (N.Y.App.Div.), aff'd, 74 N.Y.2d 754, 543 N.E.2d 741, 545 N.Y.S.2d 98 (1989) (emphasis added). The duty to observe that carry-on luggage is being stowed in a reasonable manner includes the duty to "stop passengers from stowing items which may be inappropriate for the overhead compartment." Aponte, 1996 U.S. Dist. LEXIS 13567, at *3. This duty, however, does not include opening compartments to examine the contents thereof. See Ginter, 148 A.D.2d at 788.
In cases where injury resulted from baggage falling from overhead compartments, courts applying New York law have generally denied summary judgment to airline defendants when there is evidence that the luggage in question was unusual or inappropriate for storage in the overhead compartment. See Monter v. Delta Airlines, Inc., No. 00 Civ. 0244, 2002 U.S. Dist. LEXIS 13868, at *1 (W.D.N.Y. June 24, 2002); Barrera v. Am. Airlines, Inc., No. 98 Civ. 2685, 2002 U.S. Dist. LEXIS 9394, at *1 (S.D.N.Y. May 23, 2002); Aponte, 1996 U.S. Dist. LEXIS 13567, at *1;Ginter, 148 A.D.2d at 787.
For instance, in Barrera, the court denied summary judgment to the defendant airline when a golf club fell out of an overhead compartment and struck the plaintiff on the head. See 2002 U.S. Dist. LEXIS 9394, at *1. In denying the defendant's motion, the court indicated that the crucial issue was whether the presence of the golf club in the overhead compartment created an unstable stowage condition and an unreasonable risk that it would fall out when the compartment was opened. See id. The court denied the motion holding that a golf club was in fact an unusual item that "posed a triable issue of negligence." Id. at *4. Moreover, the court clearly stated that, "there is no negligence on the part of the airline when an overhead compartment is used for its normal and intended purpose — the stowage of luggage." Id.
Similarly, in Monter, the court denied summary judgment to the defendant airline when a golf bag fell from the overhead compartment and struck the plaintiff's head, neck, and left shoulder. See 2002 U.S. Dist. LEXIS 13868, at *1. In ruling on the motion, the court stated that when an unusual item, such as a golf bag, instead of normal carry-on luggage, is stowed in an overhead compartment, such can lead to an unstable stowage condition and "create a sufficient risk to raise a triable issue as to negligence." Id. at *4. Thus, the court denied summary judgment strictly because the golf bag was an unusual item and "not part of ordinary carry-on luggage." Id.
Likewise, in Aponte, the defendant airline was denied summary judgment when a radio fell from the overhead compartment and injured the plaintiff. See 1996 U.S. Dist. LEXIS 13567, at *1. Like the court inBarrera and Monter, the court in Aponte held that a jury could determine from the evidence that the airline had a duty to stop passengers from stowing items that may be inappropriate for the overhead compartment — such as a radio. See id. at *4. Since the luggage in question was unusual and potentially inappropriate for stowage in the overhead compartment, the airline was not entitled to judgment as a matter of law. See id.
By the same standard, in Ginter, the New York Court of Appeals affirmed an order by the trial court setting aside a verdict for the plaintiff in her negligence action against the defendant airline. In Ginter, the opening of an overhead compartment caused a suitcase to fall and strike the plaintiff on the hand. See 148 A.D.2d at 788, 538 N.Y.S.2d at 639. In setting aside the verdict, the trial court stated that "obvious heavy items such as garment bags and bowling bags would not be permitted to be stored by passengers after boarding." Id. However, because there was insufficient evidence to establish that there was a dangerous condition created — as the luggage in question was a normal suitcase and not an unusual item — the court held that the plaintiff failed to establish negligence on the part of the airline. See id.
Lastly, in a case almost identical to the present case, albeit from another jurisdiction, the court granted summary judgment to the defendant airline when an unidentified passenger opened an overhead compartment and caused a camera case to fall out and injure the plaintiff. See Pardo v. Delta Airlines, Inc., 767 F. Supp. 26, 28 (D.P.R. 1991). In ruling on the motion, the court stated that the plaintiff failed to establish any involvement of the airline or its employees to provide any grounds upon which they may be held liable. See id. at 769. Moreover, the court stated that the plaintiff failed to present any evidence in response to the motion for summary judgment upon which a jury could find improper loading or overloading of the overhead compartment. Id. Absent the submission of such evidence, the court found that there was no genuine issue of material fact in dispute and granted the defendant's motion. Id.
As illustrated by the cases discussed, the prevailing law in New York is that a plaintiff's failure to submit specific facts to establish that a bag was inappropriate for storage in the overhead compartment may entitle a defendant to summary judgment. See Ginter, 148 A.D.2d at 788, 538 N.Y.S.2d at 639 (granting summary judgment because the plaintiff presented no evidence as to the actual weight of the suitcase, other than her own description of how it felt, and did not produce any evidence to establish that the suitcase was inappropriate for storage in the overhead compartment). There is no custom in the industry as to what is, or is not permitted to be placed in a plane's overhead compartments as long as the bag complies with Federal Aviation requirements as to size and the total weight in a compartment does not exceed forty pounds. See Ginter, 148 A.D.2d at 788, 538 N.Y.S.2d at 639.
In this case, plaintiff has not submitted any evidence to establish that the cosmetic bag that struck her was inappropriate for storage in the overhead compartment. Although she does assert that the bag should have been stored beneath her seat, she presents no specific facts to support her assertion. (See Martinez Aff., Ex. A at 1). All that plaintiff states is that she thought that the bag that struck her was her bag and that her bag was "a regular cosmetic bag that a woman would carry." (Id., Ex. C at 33, line 21). Thus, unlike in Barrera, Monter,Aponte and Pardo, plaintiff is not alleging that the bag that fell on her was an unusual bag that should have been deemed inappropriate for storage in the overhead compartment.
Instead, in response to defendant's motion, plaintiff merely alleges that the size and weight of the cosmetic bag made it too large for storage in the overhead compartment. For example, she claims that the bag "was as heavy as a brick," that the bag was "15-20 pounds," that it "felt as heavy as the one she carried on board," and that it "struck her like a brick." (Pl.'s Opp'n at 2, ¶ 3). These allegations, however, are mere speculations not supported by any specific facts. Plaintiff does not submit evidence of a specific weight or size that could establish that the bag was too large for the overhead compartment. In fact, plaintiff does not allege that the bag that struck her was too heavy or that it weighed 15-20 pounds when asked to describe it in her deposition, but only claims that the bag was "almost identical to hers." (Martinez Aff., Ex. C at 43, lines 6-13). The allegation that the bag weighed 15-20 pounds is first made in plaintiff's opposition papers, but is not supported by any evidence. Thus, it appears that plaintiff is merely estimating the weight of the bag that struck her based on the weight of her own bag, of which there is still no evidence to establish a particular weight.
However, a plaintiff may not defeat a summary judgment motion by merely suggesting unsubstantiated possibilities without bringing forth any evidence to establish such suggested facts. See Pardo, 767 F. Supp at 28. Indeed, mere speculations and conjectures may not defeat a properly supported motion for summary judgment. See id. (granting summary judgment because the plaintiffs failed to come forward with any evidence upon which a finding of overloading or improper loading of the overhead compartment could be based). Consequently, plaintiff has not submitted any evidence that would establish a breach of duty on the part of the airline with respect to the characteristics of the bag itself.
Even assuming, drawing all inferences in the light most favorable to plaintiff, that the bag that struck her did in fact weigh 20 pounds, there is still no evidence that this weight made the bag inappropriate for storage in the overhead compartment. Plaintiff did not submit any evidence to suggest that this weight is prohibited by FAA regulations, or that bags such as this have caused injuries in the past. Furthermore, plaintiff alleges no specific facts to establish that the entire compartment was overloaded or improperly loaded as a result of the bag's weight. Although plaintiff makes reference to other bags on the plane that were "so large that they exceeded size limits," she does not mention anything about the specific compartment in question being overloaded. (Pl.'s Opp'n at 1, ¶ 4). Thus, even drawing all inferences in favor of plaintiff, there are no material facts in dispute that would preclude summary judgment.
Plaintiff does, however, contend that some airlines are now considering installing safety nets in the overhead compartment, thus making the failure to do so a breach of duty on the part of defendant here. (Pl.'s Opp'n at 3, ¶ 2). This contention is without merit for a number of reasons. First, as a general rule, "custom may be considered in connection with the jury's appraisal of the care exercised by the defendant, but it is not a conclusive or controlling test." Ginter, 148 A.D.2d 789. Instead, the essential question is whether defendant acted with reasonable care under all the circumstances in this case. See id. Thus, merely because other airlines have initiated programs to improve the stowage of baggage in their overhead compartments does not make it per se unreasonable for Delta not to do so.
Plaintiff relies on Andrews v. United Airlines, Inc., 24 F.3d 39 (9th Cir. 1994). In Andrews, a briefcase fell from an overhead compartment and seriously injured the plaintiff. Id. at 42. At trial, the plaintiff introduced a safety and human factors expert who testified that the airline could have taken additional steps to prevent the hazard, such as retrofitting its overhead compartments with baggage nets, as some airlines had already done. See id. at 41. The district court granted summary judgment in favor of the defendant, holding that the evidence submitted by the plaintiff was insufficient to establish any liability.See id. at 40. On appeal, the Ninth Circuit held that although it was a "close question," the plaintiff had made a sufficient case to overcome summary judgment under California law. Id. Although the Andrews case is not controlling, it is, nonetheless, distinguishable from this case. InAndrews, the plaintiff presented evidence that United Airlines had 135 reports of items falling from overhead bins and that, as a result, it had begun to warn passengers of the danger. Id. at 40. Accordingly, the Ninth Circuit held that the falling of baggage was foreseeable and that a jury could find that the airline was negligent in not taking further steps to prevent it. Here, plaintiff has produced no similar evidence. Additionally, the plaintiff in Andrews did not know what caused the bag to fall out of the overhead compartment, and although she did not claim airline personnel were responsible, the possibility remained open to the court. Here, plaintiff specifically testified that no Delta employees assisted passengers with the stowing of baggage. (Martinez Aff., Ex. C at 44, line 24). Thus, plaintiff concedes that no Delta personnel could have directly caused the bag to fall out. For these reasons, plaintiff's reliance on Andrews is unpersuasive.
New York courts have also typically denied summary judgment to defendant airlines when the accident occurs after the flight attendants have — or should have — checked the overhead compartments to make sure they were secure. See Barrera, 2002 U.S. Dist. LEXIS 9394, at *3 (denying summary judgment to the defendant airline when the accident occurred during the flight, after the flight attendants had checked the compartments and insured that they were safely closed); Monter, 2002 U.S. Dist. LEXIS 13868, at *3 (denying summary judgment to the defendant airline when the accident occurred after landing, when the flight attendants had already checked the overhead compartments); Aponte, 1996 U.S. Dist. LEXIS 13567, at *2 (denying summary judgment when the accident occurred after landing, when the flight attendants had conducted a "walk through" both before takeoff and before landing to make sure that the overhead compartments were securely closed); see also Andrews, 24 F.3d at 40 (reversing a grant of summary judgment to the defendant airline when the accident occurred during the "mad scramble" after landing when passengers raced to recover their bags from the overhead compartments).
In the instant case, the accident occurred prior to takeoff — before boarding was complete and before the flight attendants checked the overhead compartments. Put simply, there was no opportunity for any Delta employee to insure that the bags in the overhead compartments were safely stowed, and the duty to do so had not arisen yet. Moreover, as noted above, although the airline's duty does include conducting a visual check to see if the compartments are closed, it does not include opening each compartment to examine whether the contents are inappropriately stored.See Ginter, 148 A.D.2d at 788. Thus, even assuming that the time had arisen for the flight attendants to check the overhead compartments, a visual check of the compartment above plaintiff would not have revealed any unusual or inappropriate storage condition.
Conclusion
For the reasons stated, there are no genuine issues of material fact in dispute that could establish liability on the part of the defendant and lead to a verdict in favor of plaintiff. Thus, defendant's motion for summary judgment is granted. The Clerk of Court is directed to close the case.
SO ORDERED: